New Packaging and Packaging Waste Regulation (EU)

The European Commission is proposing new EU-wide rules on packaging, in the form of an EU Regulation, replacing the existing Directive.

The new Regulation has three main objectives:

(1) to prevent the generation of packaging waste: reduce it in quantity, restrict unnecessary packaging and promote reusable and refillable packaging solutions.

(2) to boost high quality (‘closed loop’) recycling: make all packaging on the EU market recyclable in an economically viable way by 2030.

(3) to reduce the need for primary natural resources and create a well-functioning market for secondary raw materials, increasing the use of recycled plastics in packaging through mandatory targets.

The proposal on packaging and packaging waste will now be considered by the European Parliament and the Council.

The proposal is here. The Q&A is here.

New Batteries Regulation (EU)

Provisional political agreement is reached between the European Parliament and the Council on a new Batteries Regulation. The proposed Regulation is here. It will replace the existing Batteries Directive.

Once the new law enters into force, sustainability requirements on carbon footprint, recycled content and performance and durability will be introduced gradually from 2024 onwards. A more comprehensive regulatory framework on Extended Producer Responsibility will start applying by mid-2025, with higher collection targets being introduced over time. For portable batteries the targets will be 63% in 2027 and 73% in 2030, while for batteries from light means of transport, the target will be 51% in 2028 and 61% in 2031. All collected batteries will have to be recycled and high levels of recovery will have to be achieved, in particular of valuable materials such as copper, cobalt, lithium, nickel and lead.

Extensive more detailed secondary legislation will be adopted from 2024 to 2028 to enable the new regime to be fully operational.

Companies placing batteries on the EU internal market will have to demonstrate that the materials used for their manufacturing were sourced responsibly. This means that social and environmental risks associated with the extraction, processing and trading of the raw materials used for the battery manufacturing will have to be identified and mitigated.

The new Batteries Regulation will enter into force once it’s adopted by the European Parliament and the Council. It will then be added to Cardinal Environment Tailored EHS Legislation Registers & Checklists.

Environmental Targets (UK)

Late today the UK Government announced its delayed proposals for targets (under the Environment Act 2021) – 13 targets will be laid by statutory instrument – here – they will go live in 2023 once approved by Parliament – this is a link to England’s biodiversity indicators –

Biodiversity on land

  • To halt the decline in species abundance by 2030.
  • To ensure that species abundance in 2042 is greater than in 2022, and at least 10% greater than 2030.
  • Improve the Red List Index for England for species extinction risk by 2042, compared to 2022 levels.
  • To restore or create in excess of 500,000 hectares of a range of wildlife-rich habitat outside protected sites by 2042, compared to 2022 levels.

Biodiversity in the sea 

  • 70% of the designated features in the MPA network to be in favourable condition by 2042, with the remainder in recovering condition.

Water quality and availability 

  • Abandoned metal mines target: Halve the length of rivers polluted by harmful metals from abandoned mines by 2038, against a baseline of around 1,500 km.
  • Agriculture target: Reduce nitrogen (N), phosphorus (P) and sediment pollution from agriculture into the water environment by at least 40% by 2038, compared to a 2018 baseline.
  • Wastewater target: Reduce phosphorus loadings from treated wastewater by 80% by 2038 against a 2020 baseline.
  • Water Demand Target: Reduce the use of public water supply in England per head of population by 20% from the 2019/20 baseline reporting year figures, by 2037/38.

Woodland cover 

  • Increase total tree and woodland cover from 14.5% of land area now to 16.5% by 2050.

Resource efficiency and waste reduction 

  • Reduce residual waste (excluding major mineral wastes) kg per capita by 50% by 2042 from 2019 levels.

Air quality 

  • An Annual Mean Concentration Target for PM2.5 levels in England to be 10 µg m-3 or below by 2040.
  • A Population Exposure Reduction Target for a reduction in PM2.5 population exposure of 35% compared to 2018 to be achieved by 2040.

The announcement states the UK Government will set out more details about its plans to deliver these targets in its Environmental Improvement Plan: its manifesto for the environment for the next 5 years. Publication will be by 31 January, as required by law.

There are no targets announced for –

* River or groundwater health (existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Protected nature sites (much of the existing legislation is listed for deletion in GB under the Removal of REUL Project)

* Resource efficiency (existing legislation is listed for deletion in GB under the Removal of REUL Project)

EU Water Standards (EU)

(1) On 26 October 2022, the EU adopted a proposal to amend the Water Framework Directive, the Groundwater Directive and the Environmental Quality Standards Directive. This proposal is here.

24 substances are proposed for addition to the list of priority substances in surface waters, as well as a standard for total pesticides. They include PFAS, a range of pesticides, bisphenol A, and a number of pharmaceuticals.

The proposal also includes making certain standards stricter for substances already on the list, such as some metals and industrial chemicals.

Four other existing priority substances are proposed for removal from the list, and another for integration into the new PFAS group, and eight already-regulated “other pollutants” have been re-designated as priority substances, resulting in a total of 73.

A Q&A on this proposal is here.

(2) On the 26th October 2022, the EU adopted a proposal to revise the Urban Wastewater Treatment Directive. This proposal is here.

A Q&A on this proposal is here.

The revised directive will introduce extended producer responsibility. This means certain industries will be asked to pay for the treatment of the harmful pollutants that are released from the use of their products. Currently the pharmaceuticals and the cosmetics sectors are jointly responsible for 92% of the toxic load in wastewaters. For both sectors, there is sufficient evidence on the existence of micropollutants from these products in wastewater and there are treatments to remove their harmful residues. In the long term, the European Commission will assess if other sectors can be added to the extended producer responsibility scheme.

Statutory Environmental Targets (UK)

The Environment Act 2021 introduced a system of environmental governance based on statutory environmental principles and long-term environmental targets, and an Environmental Improvement Plan, all supported by an independent Office for Environmental Protection (operating in England and separately in Northern Ireland). Scotland does not have an OEP, it has set up a separate body under different legislation. Wales has no OEP.

Statutory targets were due (by law) by 31st October, but this deadline has been missed. The first review of the Environmental Improvement Plan is required by 31 Jan 2023. The current Environmental Improvement Plan is dated 2018 and the latest annual report on it is here. Annual reports are required by section 9 of the Environment Act 2021. Environment targets are governed by sections 1 to 7 of the Act. Section 10 stipulates reviews of the Environmental Improvement Plan.

In March 2022, the government announced a consultation on the targets. It closed on 27th June. The outcome of this consultation is not announced, nor are the statutory targets.

DEFRA responded to the OEP that it is committed to the target of halting species decline by 2030 which is included on the face of the Environment Act, and to bring forward the wider suite of targets specified under the Act.

The OEP is pressing for publication of the targets – here is their latest letter to DEFRA.

Included in the OEP’s letter to DEFRA is a non-exhaustive list of other statutory deadlines which appear to have been missed.

EU Law Revocation (Britain) UPDATE

The Retained EU Law (Revocation and Reform) Bill (I posted about recently) is in Committee stage, and the Public Bill Committee (the relevant Committee) yesterday has asked for submissions to it – here.

You can see from the link, the purpose of the Bill is to sunset (remove from the statute book) certain types of law by end 2023. In particular, the Bill will completely overhaul a body of UK domestic law known as “retained EU law” (REUL). This is a category of law that came into being as a result of the UK exit from the EU. It includes both Retained EU instruments, and certain domestic laws that gain their authority in a particular way.

Note: when the Committee concludes its consideration of the Bill it is no longer able to receive written evidence and it can conclude earlier than the expected deadline of 5.00pm on Tuesday 22 November.

As I have written in the last Email Alert to clients, we will commence listing the laws to be affected shortly, and this list will display on Cardinal Environment Limited EHS Legislation Registers and Checklists from Jan 2023 (earlier drafts will display earlier) and be subject to tracking through 2023.

A very considerable number of laws will be affected.

We expect most affected laws to be replaced with new laws, covering the same obligations. The tracking evident on Legislation Registers and Checklists will identify progress.

We do not expect that obligations will be removed altogether. If a law is removed without a replacement, we expect the obligations to be inserted by amendment into other pre-existing law, and the tracking will identify this.

Nonetheless, this is a complex process.

Environment Act 2021 – summary (UK)

The Act is not yet published, neither is any commencement order, nor any regulation.

The closest text is the text as introduced to the House of Lords – here. Note, Environment is a devolved matter, which means the bulk of the Environment Act 2021 provisions relate to England only.

Key points –

(1) the government must set long-term targets in priority areas for England (and may set other long-term targets) – by regulations – air quality, water, biodiversity, resource efficiency and waste reduction. The government must then review these targets in the context of the significant improvement test in section 6.

(2) the government must publish a statement of environmental principles, to be used in policy making.

(3) the government must publish a report (at specified intervals) on developments in international environmental law.

(4) an Office for Environmental Protection (OEP) must be established in England, to carry out certain scrutiny and advice functions. Schedule 3 deals with the OEP as respects Northern Ireland.

(5) Schedule 4 confers powers to make regulations on producer responsibility, replacing authority in earlier legislation which is revoked. Schedule 5 confers powers to charge for disposal costs.

(6) Schedule 8 confers powers to make regulations to create deposit schemes.

(7) Schedule 9 confers powers to make regulations about charges for single-use plastic items.

(8) the Environmental Protection Act 1990 is amended with provisions about the separate collection of recyclable waste in England – glass, metal, plastic, paper and card, food waste.

(9) the Environmental Protection Act 1990 is amended with updated provisions for hazardous waste in England and Wales.

(10) the Waste and Contaminated Land (Northern Ireland) Order 1997 is amended with updated provisions for hazardous waste.

(11) the Environmental Protection Act 1990 is amended with updated provisions for transfrontier waste shipment.

(12) the government may make regulations to recall vehicles or engines on environmental grounds (section 73).

(13) the Water Resources Act 1991 (applicable England and Wales) is amended to require sewerage undertakers to publish and maintain a drainage and sewerage management plan. These provisions were strengthened slightly following consideration in the House of Lords (final Act text not yet published).

(14) the government (and the relevant authorities in the devolved administrations) may make regulations to change water quality standards.

(15) Schedule 14 provides for biodiversity gain to be a planning condition.

(16) the Natural Environment and Rural Communities Act 2006 section 40 duty to conserve biodiversity (England) is substantively enhanced.

(17) local authorities in England must publish biodiversity reports at specified intervals.

(18) there must be more local nature recovery strategies so that they cover the whole of England.

(19) Natural England is empowered to publish a strategy for improving the conservation status of any species of flora or fauna (a special conservation strategy).

(20) Natural England is empowered to publish a strategy for improving the conservation and management of a protected site (a protected site strategy).

(21) local authorities in England must consult before felling street trees.

Environment Act 2021 (UK)

The long awaited Environment Act 2021 finally received its royal assent on 9th November. The government press release is here.

The document is not yet published, and its provisions will need to be commenced. The detail will be in Regulations, which are not yet available.

I had written extensively when the document was first promulgated, and I will write further blog posts on the subject once the Act is published and we see the provisions that are commenced now.

Environment Bill (announced additions) (UK)

The long awaited and highly significant Environment Bill is revived in the current Parliament session. I Blog posted earlier that it would be.

The UK government has made 3 announcements in May –

(1) new legal duties on water companies and the government will be inserted to reduce sewage discharged into waterways – announcement is here

(2) a new additional legally binding target for species abundance for 2030 will be inserted – George Eustice Speech is here

Environmental targets in the Bill are summarised in the October 2020 updated August 2020 policy paper – here.

(3) a new power will be taken to refocus the Habitats Regulations – see George Eustice Speech

[The George Eustice Speech also makes further announcements on consultation and strategy publication in the areas of Nature, Peat and Trees.]

The Bill, as we see it now, was originally revived from the previous May Government after the 2019 general election.

In 2020, the majority of the 2019-2020 Bill provisions were substantially the same as its predecessor, although a number of minor technical changes had been made to the drafting. The substantive additions to the Bill (at the start of 2020) were :

• a requirement on Ministers to make a statement to Parliament setting out the effect of new primary environmental legislation on existing levels of environmental protection (Clause 19); and

• a requirement on the Secretary of State to conduct a two-yearly review of the significant developments in international legislation on the environment, and to publish a report on their findings every two years (Clause 20).

The Commons Library analysed the Environment Bill in March 2020 – here.

Most of the Bill extends to England and Wales and applies in England. There are some parts that extend to the whole of the UK or apply to specific UK nations. For example, there are specific provisions on environmental governance, managing waste and water quality that extend and apply to Northern Ireland only. Provisions on waste including producer responsibility, resource efficiency and exporting waste extend and apply to the whole of the UK, as do the provisions on environmental recall of motor vehicles, and the provisions on the regulation of chemicals.

Note – DEFRA has current consultations relating to the Environment Bill –

(1) Consultation on the Draft Policy Statement on Environmental Principles – here.

(2) Consultation on Introducing a Deposit Return Scheme in England, Wales and Northern Ireland (a Deposit Return Scheme is already legislated for in Scotland) – here.

Plastic Bag Charge in law (England)

The legislation increasing the plastic bag charge in England was enacted yesterday 20 May, and comes into force today 21 May – this legislation is here. [I blog posted about this before]

It will be added to those Cardinal Environment EHS Legislation Registers & Checklists that monitor the Plastic Bag Charges. It amends the existing 2015 Order (the Carrier Bags Order).

[Separate legislation in Scotland, already added, has already increased the charge in Scotland.]

Article 3 amends the Carrier Bags Order by omitting the expiry date of 5th October 2022 in article 1(d), by which that Order would have ceased to have effect. Articles 6, 7, 10 and 11 make amendments to the Carrier Bags Order consequential on the omission of the expiry date.

Articles 4 and 8 amend the Carrier Bags Order in order to substitute a new definition of “seller”. This brings all sellers of goods under the obligation to charge in article 3 of the Carrier Bags Order and restricts the obligation relating to records in article 4 of, and Schedule 3 to, that Order to sellers within the meaning given in Schedule 1.

Article 5 amends the Carrier Bags Order in order to increase the minimum charge for each single use carrier bag (SUCB) supplied in a reporting year from 5 pence to 10 pence.

Article 9 amends the definition of SUCB in Schedule 2 to the Carrier Bags Order by amending the list of “excluded bags” in the table.

The effect of this is –

(1) The single-use carrier bag charge is increased to 10 pence and extended to all retailers in England from today (21 May). This includes small, medium and micro retailers (including airport retailers).

(2) An extra 10 pence is not chargeable if a charge of 10 pence or more is already charged for bags.

(3) Biodegradable bags are not exempt from the charge.

(4) Carrier bag use records or reports do not need to be made if the company employs fewer than 250 staff.